Bills Digest No. 136 2003-04

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The purpose of the Bill is to amend the
Commonwealth Electoral Act 1918 (the Electoral Act ), the
Referendum (Machinery Provisions) Act 1984 (the Referendum
Act ) and other Acts in response to recommendations of the Joint
Standing Committee on Electoral Matters (JSCEM), made in its
reports on the 2001 and 1998 federal elections, and its 2001 report
on the integrity of the electoral roll. The Bill also includes
measures contained in the Electoral and Referendum Amendment (Roll
Integrity and Other Measures) Bill 2002, currently before the
Parliament. The Government proposes that debate not proceed on the
2002 Bill.(1)

The Bill proposes to amend the Electoral Act
to remove the right to vote from all persons serving a full time
sentence of imprisonment in respect of their conviction for an
offence against the law of the Commonwealth or of a State or a
Territory. Currently, prisoners serving sentences of 5 years or
more are prevented from voting in federal elections. The current
provision removes the right to vote from about 11 000 people, the
proposed provision would add around 7 000 to that figure. Because
the Australian prison population is composed of a substantially
disproportionate number of indigenous prisoners, the removal of the
right to vote has a disproportionate effect on the indigenous
population. Indigenous persons are 16 times more likely to be in
prison than non-indigenous persons.(2)

The voting entitlement of prisoners has been a
controversial issue. In its report on the 1993 election, the JSCEM
adopted the recommendation of its predecessor (made in its report
on the 1986 election) that all prisoners, except those convicted of
treason, be granted the right to vote.(3) As the JSCEM
said:

An offender once punished under the law should not
incur the additional penalty of loss of the franchise. We also note
that a principle aim of the modern criminal law is to rehabilitate
offenders and orient them positively toward the society they will
re-enter on their release. We consider that this process is
assisted by a policy of encouraging offenders to observe their
civil and political obligations.(4)

The JSCEM report on the 1998 election noted
that the majority of the committee supported earlier
recommendations in favour of giving all prisoners the franchise but
stopped short of making a recommendation to this effect itself, on
the basis that public support was lacking.(5) Those
pursuing this or similar positions include the International
Commission of Jurists(6), the Criminal Law and Penal
Methods Reform Committee of South Australia,(7) the
Seventh International Congress of Criminal Law,(8) and
the Report of the Royal Commission into New South Wales Prisons
(1978) (the Nagle Report ),(9) in which Mr Justice Nagle
expressed the view that:

A citizen s right to vote should depend only on
his ability to make a rational choice. Loss of voting rights is an
archaic leftover from the concepts of attainder and civiliter
mortuus and has no place within a penal system whose reform
policies aim to encourage the prisoner s identification with,
rather than his alienation from, the community at large. All
prisoners should be entitled to vote at State and Federal
elections. Necessary facilities should be provided for them to
exercise their franchise.(10)

Despite this substantial support, Bills to
give all prisoners the right to vote have twice failed, in 1989 and
in 1995.(11) And in 1996 the JSCEM, contrary to its two
previous reports on this issue, recommended that all prisoners be
denied the vote on the grounds that:

While rehabilitation is an important aspect of
imprisonment, equally important is the concept of deterrence,
seeking by the denial of a range of freedoms to provide a
disincentive to crime. Those who disregard Commonwealth or State
laws to a degree sufficient to warrant imprisonment should not be
expected to retain the franchise.(12)

It is this recommendation that the current
Bill seeks to implement.(13) One previous attempt to
give effect to this view (the Electoral and Referendum Amendment
Bill 1998) failed when it was opposed in the Senate by the
Australian Labor Party, the Democrats and the Greens, and the 2002
Bill containing the same measure has not been proceeded
with.(14)

The power of the Commonwealth Parliament to
disenfranchise prisoners is not beyond doubt. It is arguable that
there is an implied right to vote inherent in the system of
representative government established by the Constitution, and that
prisoner disenfranchisement is not consistent with that right. For
a more extensive discussion of the opposing arguments and
constitutional validity of the proposed provision, see Jerome
Davidson, Inside outcasts: Prisoners and the right to vote in
Australia, Current Issues Brief, Parliamentary Library,
Canberra, 2003-04, extracts from which have been reproduced
here.

The Bill contains several amendments directed
at changing the basis of enrolment under the Electoral Act from
residence within a subdivision to residence at an address
within a subdivision. The AEC has, on a number of occasions,
submitted to the JSCEM that the basis of enrolment should be the
elector s address. The AEC, since the early 1990s, has been
implementing an address based roll. According to the AEC:

There are a number of advantages in converting to
an address based system. One obvious advantage is that the system
will detect any enrolment anomalies. For example if an elector were
to enrol in an address that was non-habitable, the system would
provide appropriate information to the operator and ensure follow
up action was undertaken. Similarly if a large number of electors
were to enrol in a single dwelling then the system would indicate a
possible problem. The address based system represents a significant
technical development for improving the quality of the enrolment
database, and is an essential pre-requisite for any large-scale
data-matching.(15)

The AEC has also adopted a continuous roll
update system, by which the roll is updated continuously rather
than at regular intervals (previously two years). Continuous roll
updating based on the address register has led to an anomaly by
reason of the fact that enrolment under the Electoral Act is based
not on address but on division.(16) A problem occurs
when the AEC becomes aware that an elector has changed address. In
that circumstance the AEC sends a notice to the elector advising
that their name will be removed if a satisfactory reply is not
received.(17) In the absence of a satisfactory reply,
the AEC initiates objection action to remove an elector from the
roll.(18) The AEC noted:

If an objection deletion is actioned by the AEC,
and when attempting to vote, the elector claims to be living within
the subdivision, and provided the objection was actioned since the
last redistribution or since the general election before last,
whichever is later, the objection is deemed to have been based on a
mistake of fact, and the elector must be reinstated without
question as to their actual residency, and their vote
counted.(19)

The requirement that an elector be reinstated
on the roll is contained in section 105(4) of the Electoral Act.
Another complaint of the AEC is that division based enrolment
causes administrative problems in terms of state vis a vis
federal rolls:

When we are talking about a person who has moved
from one State electorate to another we end up taking them off the
State roll and keeping them on the federal roll. Then we have the
problem of trying to get them to re-enrol for the State electorate.
It is becoming a very messy business If we were to enrol the people
for their new address, we would not have that confusion; we would
do it all in one.(20)

In its report on the 1993 election, the JSCEM
s response to this proposal was:

The Committee can see the logic in the proposal
that the basis for enrolment should be address rather than
Division, but can also see a danger that electors who fail to keep
their enrolled address up to date, but still reside within the same
Division, could be disenfranchised. While the basis for public
education should certainly be that people notify the AEC if they
change address, the Committee does not believe that address rather
than Division should be the basis for enrolment and objection under
the Electoral Act.(21)

The same concern regarding potential
disenfranchisement was raised by Senator John Faulkner, Michael
Danby MP and Laurie Ferguson MP in a JSCEM Minority
Report.(22) Taking account of those concerns, in its
report on the 1998 election, the JSCEM recommended that:

The basis of enrolment be the elector s address,
and that the objection provisions be amended such that an elector
can be removed from the Roll when it can be shown the elector no
longer lives at their enrolled address.

If an elector moves with their Division, does not
re-enrol, and is removed by objection, their provisional vote for
their Division will be counted, provided their last enrolment was
within that Division and was since the last redistribution or
general election; and

If an elector moves outside their enrolled
Division, but remains within the State / Territory, and claims a
vote within their old or new Division, their vote in the Senate
will count but the House of Representatives vote will not
count.(23)

The Bill amends the Electoral Act to create an
obligation to inform the Divisional Returning Officer for a
Division within 21 days after a person has changed address and
been living at the new address for a period of one month. The
existing provision(24) requires notification within 21
days after the change. The penalty for non-compliance is to be one
penalty unit (currently $110), as opposed to the existing penalty
of $50.

The Bill provides for a requirement that
evidence of identity and address be shown when enrolling, changing
enrolment, or claiming entitlement to vote when the elector s name
is not on the certified list. The details of the evidence that will
be required are not provided for in the Bill. Rather, the
Bill provides for regulations to be made for that purpose. The Bill
expressly provides that the new requirements relating to proof of
identity do not apply unless regulations for this purpose are in
operation when a claim for enrolment or change of enrolment, or a
claim to be entitled to a provisional vote, is made.

In its report on the 2001 election, the JSCEM
expressed concern that confidence in the electoral system should
not be undermined because the proof of identity required to vote to
determine the government of Australia is less than that required,
for example, to become a member of a video library. (25)
The JSCEM recommended that:

All applicants for enrolment, and re-enrolment
provide documentary evidence verifying their name and address by
providing photocopies of a driver s licence or other documents
accepted by the AEC, and where such documents cannot be provided,
by two people who are on the electoral roll supplying a
confirmation of identity and address.(26)

The JSCEM considered that more stringent
requirements are necessary because (1) there is potential for abuse
of the system; (2) confidence in the system is undermined by
perceptions of potential for abuse, whether or not actual abuse is
taking place; and (3) that it is inappropriate that proof of
identity requirements on enrolment are lax in comparison with other
transactions which are equally or less
important.(27)

Although the requirements for proof of
identity will ultimately be specified in regulations, the
Australian Labor Party has indicated an intention not to support
this provision, objecting to a statement in the Explanatory
Memorandum that:

Where no identification documentation [is]
available, only people in a prescribed class would be able to
provide written references supporting an enrolment
application.(28)

According to the ALP, that statement is
contrary to the recommendation of the JSCEM.(29) Until
such time as draft regulations are circulated, outlining the exact
nature of the prescribed class of person capable of providing
references, it will be difficult to advance debate on this
issue.

The close of rolls refers to the time by which
electors must enrol or change enrolment details prior to an
election. Currently, the time is seven days after the election
writs(30) are issued. The proposed amendments in the
Bill provide for this period to be shortened, in respect of new
enrolments, to 6pm on the day the writs are issued, and, in respect
of change of enrolment, to 8pm three working days after the writs
have issued. This provision is based on recommendation 3 of the
JSCEM s report on the 1998 election. The Committee noted that the
greatest catalyst for enrolment is an electoral event.
(31) Because a large number of enrolments occur in the
short time before the close of the rolls, the Committee was
concerned about potential inaccuracies in the roll as a result of
the AEC not being able to properly check details. In its report on
the 2001 election, however, the JSCEM was of a different view:

The Committee examined proposals to shorten the
close of rolls period but concludes that, particularly in light of
the checking process in place and the recommendations to strengthen
proof of identity requirements for enrolment and re-enrolment, the
close of rolls period should remain at seven
days.(32)

The JSCEM noted that, during the 2001
election, 373 732 voters enrolled or re-enrolled during the close
of rolls period, 83 027 of whom were new enrolees.(33)
These figures demonstrate the truth of the previous JSCEM s
observation that for many, an electoral event is a catalyst for
enrolment. For that reason, however, a provision shortening the
period has potential to disenfranchise large numbers of people.

The Bill provides for the sex and date of
birth of electors to appear on the certified list for elections and
referenda. Such provision is based on a recommendation made by the
JSCEM.(34) The reasoning behind the recommendation
was:

The committee is of the view that the inclusion of
the gender and date-of-birth of electors on the Certified Lists
would provide an instant and improved check on identity when
voting. The inclusion of this additional information on the
Certified Lists would enable polling officials to easily verify the
identity of electors if required.(35)

It is proposed under the Bill to prohibit
scrutineers(36) from assisting disabled voters to cast
their votes. The provision is based on a recommendation of the
JSCEM in its report on the 1998 election.(37) The
recommendation appears to have been motivated by concern that
scrutineers might influence the disabled voter. The recommendation
was not unanimously supported. In their minority report, Senator
John Faulkner, Michael Danby MP and Laurie Ferguson MP, said:

Currently, the elector decides who will assist
them. This is a very practical way of handling assisted voting it
is fair, and it preserves the secrecy of an individual s vote. It
does not compromise an elector s rights, nor does it in any way
compromise the proper functioning of polling booths or the
integrity of the electoral process.(38)

There are several
provisions under the Electoral Act requiring disclosure of certain
transactions in excess of fixed amounts. Persons making donations
to a registered political party totalling more than $1500 in any
one year are required to furnish a return to the AEC disclosing the
amount and date of the donation and the political party to which it
was made.(39) Political parties or persons acting on
their behalf are required to disclose donations received of $1000
or more.(40) Political parties, candidates and persons
acting on their behalf must not accept loans of $1500 of more
without keeping detailed records thereof.(41) Political
parties must lodge annual returns containing details of amounts
received, or debts incurred, of $1500 or
more.(42)

TheBillproposes to increase the threshold in all of
those instances to $3000. That is based on recommendations made in
the JSCEM report of the 1998 election.(43) The reasoning
of the Committee was that the amendment would ease the
administrative burden associated with the disclosure provisions.
The Committee rejected submissions by the Liberal Party that the
threshold amounts should be $10 000. The recommendations of the
JSCEM were opposed bySenatorJohnFaulkner,MichaelDanby MPandLaurieFerguson MPin their JSCEM Minority Report.(44)
Their opposition was based on the assertion that increasing the
threshold has no policy merit and will only diminish the
transparency of the disclosure laws and allow further donations to
parties and candidates to go undisclosed. (45)
SenatorsAndrewBartlettandAndrewMurraymade their own series of recommendations for
disclosure.(46)

The Electoral Act
currently requires publishers and broadcasters to lodge returns
with the AEC disclosing details of pre-election political
advertising including the identity of the advertiser, the authority
for the advertisement, the times it was broadcast or published and
the amount charged.(47) TheBillproposes to remove these requirements from the
Act. This is a government-initiated amendment. The rationale is
that:

These provisions place an administrative burden on
publishing and broadcasting businesses that is not required because
expenditure on electoral advertising is already disclosed by
individuals and organisations that authorise the advertisements as
required under other sections of the Electoral
Act.(48)

It might be argued,
however, that the requirement for broadcasters and publishers to
furnish returns provides a means of checking that information
received by other parties is accurate and complete.

The Electoral Act
currently requires that, where an article or paragraph in a journal
contains electoral matter , the proprietor of the journal must
cause the word advertisement to be printed as a headline to the
article or paragraph.(49) Electoral matter is defined in
the Act to mean matter which is intended or likely to
affect voting in an election. As the Explanatory Memorandum notes,
this means that, as the legislation currently stands, any political
commentary in any journal must be labelled as an advertisement.
(50) Acting on a submission by the AEC, the JSCEM, in
its report on the 1998 election, recommended that the Act be
amended to require only that advertisements containing
electoral matter in journals be required to be so labelled. This is
the recommendation that is now being acted upon. The recommendation
was opposed bySenatorJohnFaulkner,MichaelDanby MPandLaurieFerguson MPin their JSCEM Minority Report, on the ground
that they opposed any weakening in the accountability for, and
transparency of election advertising material. (51) With
respect to the dissentients, however, the amendment clearly has
merit, in that it corrects what is obviously a technical flaw in
the Act.

The Electoral Act
currently prohibits persons from signing, as witness:

a blank electoral paper

an electoral paper that has been completed but not signed by the
relevant person; and

a signed electoral paper where the witness did not actually see
the person sign the document.(52)

TheBillincreases the maximum penalty for contraventions
of that prohibition from $1000 fine to 12 months imprisonment. The
Explanatory Memorandum refers to false claims by witnesses , but no
element of fraudulent intent is required. Hence a person who signs
a blank paper, trusting that a good friend will complete it, or who
witnesses a paper without having actually seen the person sign, but
trusting that they did, will be liable, under the proposed
amendment, to 12 months imprisonment. Since other offences under
the Act involving actual fraud attract a maximum of only 6 months
imprisonment, the proposed penalty appears
disproportionate.(53)

TheBillintroduces a new offence of intentional multiple
voting. This will be in addition to the existing offence of
multiple voting under the Electoral Act, which attracts liability
of 10 penalty units (currently $1100). The difference between the
two offences is that the new provision requires proof of intention
to cast multiple votes, whereas the existing offence is one of
strict liability(54), which means that the prosecution
need not prove that the person acted deliberately but a defence
exists if the accused proves they voted more than once by reason of
an honest and reasonable mistake.

The new offence
carries a penalty of up to 60 penalty units or 12 months
imprisonment or both. There is specific provision to the effect
that, where a person votes a number of times, each vote constitutes
an offence. The Explanatory Memorandum says the aim is to reinforce
the severity of multiple voting. (55) This is an unusual
provision. It effectively provides a varying maximum sentence to
which each offence adds one year and it would be within the power
of the court to determine whether any prison sentence should be
served cumulatively or concurrently.(56) A simpler
method might be to increase the maximum sentence and make the one
course of criminal conduct equivalent to one offence, consistent
with the manner in which the criminal law would usually
proceed.

These items amend the Electoral Act to make
addresses, rather than Divisions, the basis of enrolment, and the
associated amendments to the objection and provisional voting
sections. These items commence on the 28th day after the
Act receives the Royal Assent.

Schedule 1, items 9, 12, 16, 19 and
42

These items amend the Electoral Act to add
more stringent requirements relating to proof of identity and
address. These items commence on a date to be fixed by
proclamation.

Schedule 1, items 10, 13, 17, 37, 45,
62 and 63

These items amend the Electoral Act to shorten
the period before the close of the rolls. These items commence on a
date to be fixed by proclamation.

Schedule 1, items 72 to 74, 76 and
77

These items amend the Electoral Act to add a
requirement for the inclusion of sex and date of birth details on
the certified list for elections and referenda. These items
commence on the 28th day after the Act receives Royal
Assent.

Schedule 1, item 75

These items amend the Electoral Act to prevent
scrutineers from assisting disabled voters to vote. These items
commence on the 28th day after the Act receives Royal
Assent.

Schedule 1, items 79 to 84, 86 and
87

These items amend the Electoral Act to provide
for an increase in the threshold for various disclosure provisions.
The provisions commence on the 28th day after the Act
receives Royal Assent.

Schedule 1, item 85

This item amends the Electoral Act to remove
the requirement for publishers and broadcasters to furnish returns
containing details of electoral advertisements. These items
commence on the 28th day after the Act receives Royal
Assent.

Schedule 1, items 88 to
91

These items amend the Electoral Act to modify
the requirement for the label advertisement to appear on published
material by limiting it to advertisements, not article or
paragraphs. The items commence on the 28th day after the
Act receives Royal Assent.

Schedule 1, item 92

This item amends the Electoral act to increase
the penalty for signing a blank electoral paper, or one that has
not been signed, or one where the person signing as witness has not
actually witnessed the signing of the paper. The provision
commences on the 28th day after the Act receives Royal
Assent.

Schedule 1, item 93

This item amends the Electoral Act to
introduce a new offence of intentional multiple voting in
elections. The provisions commence on the 28th day after
the Act receives Royal Assent.

These items amend the Referendum Act to make
addresses, rather than Divisions, the basis of enrolment, and the
associated amendments to the objection and provisional voting
sections. These items commence on the 28th day after the
Act receives the Royal Assent.

Schedule 1, items 106 to
109

These items amend the Referendum Act to
shorten the period before the close of the rolls. These items
commence on a date to be fixed by proclamation.

Schedule 1, items 110 to 112, 114 and
115

These items amend the Referendum Act to add a
requirement for the inclusion of sex and date of birth details on
the certified list for elections and referenda. These items
commence on the 28th day after the Act receives Royal
Assent.

Schedule 1, item 113

This item amends the Referendum Act to prevent
scrutineers from assisting disabled voters to vote. These items
commence on the 28th day after the Act receives Royal
Assent.

Schedule 1, item 118

This item amends the Referendum Act to remove
the requirement for publishers and broadcasters to furnish returns
containing details of electoral advertisements. These items
commence on the 28th day after the Act receives Royal
Assent.

Schedule 1, items 119 to
123

These items amend the Referendum Act to modify
the requirement for the label advertisement to appear on published
material by limiting it to advertisements, not article or
paragraphs. The items commence on the 28th day after the
Act receives Royal Assent.

Schedule 1, item 125

This item amends the Referendum Act to
introduce a new offence of intentional multiple voting in
referenda. The provisions commence on the 28th day after
the Act receives Royal Assent.

The Bill proposes several measures for the
amendment of the Acts regulating the Australian electoral process.
The more controversial proposals include to remove the right to
vote from all persons serving a full-time sentence of imprisonment
and the proposal to shorten the period before the close of the
rolls. Parliament might consider whether those provisions have the
potential to disenfranchise a significant number of people.
Parliament may also wish to give close scrutiny to the proposed
penalty provisions for the new offence of intentional multiple
voting, and for the existing offences of falsely witnessing
electoral papers. Consideration of the provisions relating to proof
of identity and address might be assisted by the circulation of any
draft regulations intended to be introduced for this purpose.

Peter Slipper, Parliamentary Secretary to the Minister for
Finance and Administration, Second reading speech: Electoral and
Referendum Amendment (Enrolment Integrity and Other Measures) Bill
2004 , House of Representatives, Debates, 1 April 2004, p.
27931.

Australian Bureau of Statistics Prisoners in Australia
2003, p. 5.

Joint Standing Committee on Electoral Matters, The 1993
Federal Election: Report of the inquiry into the conduct of the
1993 federal election and matters related thereto, Canberra,
November 1994, p. 143.

ibid.

Joint Standing Committee on Electoral Matters, The 1998
Federal Election:Report of the inquiry into the conduct
of the 1998 federal election and matters related thereto,
Canberra, June 2000, p. 89.

In a submission to the Joint Standing Committee on Electoral
Matters, see The1996 Federal Election: Report of the
inquiry into the conduct of the 1996 federal election and matters
related thereto, Joint Standing Committee on Electoral
Matters, Canberra, 1997, p. 48.

A writ is a formal legal document commanding an electoral
officer to hold an election and contains dates for the close of
rolls, close of nominations, polling day and the return of the
writ.

The 1998 Election, op. cit. par.2.23, p. 14.

The 2001 Federal Election, op. cit., p. xxix.

ibid.

Joint Standing Committee on Electoral Matters, User
friendly, not abuser friendly, Report of the Inquiry into
the Integrity of the Electoral Roll, Canberra, May 2001, p.
15.

ibid.

A scrutineer , according to Butterworths Encyclopeadic
Australian Legal Dictionary, means In relation to an election,
an overseer of the scrutiny process appointed by a candidate to
represent the candidate at the scrutiny.

Jerome Davidson
18 May 2004
Bills Digest Service
Information and Research Services

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